Respondents Deltek, having filed a motion to publish opinion, and the hearing panel having reconsidered its prior determination and finding that the opinion will be of precedential value; now, therefore it is hereby:
ORDERED that the unpublished opinion filed August 19, 2013, shall be published and printed in the Washington Appellate Reports.
LEACH, C.J.
West Consultants Inc. (West) appeals the trial court's enforcement of a forum selection clause. This decision resulted in the dismissal of its claims against Deltek Inc., Deltek Services Inc., Deltek Systems Inc., Deltek Corp., and Deltek Partners (collectively Deltek) for improper venue and an award of reasonable attorney fees and costs to Deltek.
West is an environmental engineering firm. Deltek Inc. is a Delaware corporation with corporate offices located in Virginia. It manufactures software. A&E Systems sells and maintains Deltek software. On March 28, 2008, West purchased a Deltek Vision Software license and quarterly maintenance from A&E. Deltek was not a party to and did not sign the purchase agreement, which stated,
This agreement also included a choice of law provision: "This agreement shall be governed by the laws of the State of Washington and venue of any suit will be in King County, WA."
West purchased installation, training, and support services from Deltek. West employee Hans Hadley signed a work order on May 13, 2008, requiring Deltek to assist Hadley with installing the software. The work order stated that it was subject to the terms of a separate license agreement between West and Deltek. This license agreement required bringing any claim "relating in whole or in part to this Agreement" in either a state court within Fairfax County, Virginia, or in the United States District Court for the Eastern District of Virginia. On May 16, 2008, a Deltek representative spoke on the phone with Hadley to assist him with installing the software. To complete the installation, Hadley accepted Deltek's license agreement by clicking on a series of buttons on his computer screen. This click-through agreement stated, "YOU AGREE TO BE BOUND BY THE ALL [sic] TERMS OF THIS AGREEMENT BY INSTALLING, COPYING OR USING THE SOFTWARE. IF YOU DO NOT INSTALL, COPY OR USE THE SOFTWARE[,] YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE." The license agreement also included certain express warranties for the software's operation and disclaimed all implied warranties.
On March 22, 2010, after West determined that the software did not meet its needs, West sued Deltek and A&E in King County Superior Court, alleging violations of the Consumer Protection Act (CPA), chapter 19.86 RCW, breach of implied warranties of merchantability and fitness for a particular purpose, and unjust enrichment. On May 25, the court granted Deltek's motion to dismiss for improper venue under CR 12(b)(3), dismissing West's claims against Deltek without prejudice. On June 14, 2010, the court entered an order granting Deltek's request for attorney fees and costs. On August 5, 2011, after West and A&E settled, the court dismissed West's claims against A&E.
On December 27, 2011, Deltek filed a notice of presentation of judgment under CR 54 for both the dismissal order and the fee award. West responded to the motion and attached a declaration from its attorney, Richard Seward, stating, "Virginia law barred Plaintiff's Consumer Protection Act claim and that pursuing the balance of the claims in Virginia was cost prohibitive." Deltek moved to strike a portion of the declaration, arguing that West was improperly attempting to introduce new evidence. The court denied Deltek's motion on January 17, 2012, and entered a final judgment on January 25. West appeals, and Deltek cross appeals.
We review a trial court's decision on the enforceability of a forum selection clause using an abuse of discretion standard.
We review the legal basis for an attorney fee award de novo, but we review the reasonableness of the award amount for abuse of discretion.
West's primary contention is that the forum selection clause in the A&E purchase agreement controls its claims against Deltek, even though these claims arise out of the Deltek license agreement. West reaches this conclusion through the following analysis. A&E and Deltek are partners. The A&E purchase agreement provision establishing venue in King County binds its partner, Deltek. The forum selection clause in Deltek's license agreement modifies the purchase agreement provision without consideration. This lack of consideration makes the modification unenforceable. We reject West's analysis because it fails to recognize the "layered contract" nature of this transaction. We also reject West's policy arguments and its challenge to a fee award in Deltek's favor.
In
West's complaint asserts that Deltek breached implied warranties of merchantability and fitness for a particular purpose. It also alleges that Deltek violated the CPA "by selling a poor quality product to Plaintiff WEST and failed to provide adequate installation, training and maintenance services to render the product useful for any purposes, let alone the special and particular purposes of the Plaintiff." West does not dispute that its claims relate in whole or in part to the license agreement, particularly the agreement's warranties and disclaimers, and it does not seek to rescind the license agreement. West does not allege any breach of the purchase agreement's provisions.
As West appropriately acknowledged at oral argument, here, as in
West contends that it agreed to this contract without reading it. We follow the court's reasoning in
"A forum selection clause is presumptively valid unless it violates fundamental public policy of the State of Washington and Washington's interest in the determination of the issue materially outweighs the chosen state's interest."
West asserts that the license agreement's forum selection clause is invalid because "Deltek cannot force a new agreement upon Plaintiff WEST without new consideration." But, under
West also contends that enforcing the license agreement's forum selection clause would violate the CPA's public policy goals and "deny Plaintiff WEST and any other injured Washington `persons' a forum for its claims against Deltek." In support of this argument, West cites
On appeal, West argues that its claims against Deltek are time barred in Virginia and "that pursuing such claims in either state or federal court in Virginia would be cost prohibitive." It first presented a similar argument to the trial court in response to Deltek's notice of presentation. But the trial court did not consider this contention timely and entered a final judgment "as set forth in the Court's May 25, 2010 Order Granting Certain Defendants' Motion to Dismiss for Improper Venue," and "as set forth in the Court's June 14, 2010 Order Granting Attorneys' Fees and Costs." Therefore, we also decline to address it.
West also claims that the trial court's order awarding attorney fees and costs to Deltek "was only authorized by [RCW 4.28.185(5)] if the error had not occurred on the ruling granting Deltek's motion to dismiss." RCW 4.28.185(5) allows a prevailing defendant to recover reasonable attorney fees and costs "[i]n the event the defendant is personally served outside the state on causes of action enumerated in this section." West does not dispute that it caused Deltek to be served personally in Delaware under Washington's long-arm statute. Because the trial court properly granted Deltek's motion under RCW 4.28.185(5), we affirm the fee award.
Deltek requests attorney fees and costs on appeal under RAP 18.1 and RCW 4.28.185(5). "Such an award is discretionary and is limited to the amount necessary to compensate a foreign defendant for the added costs of litigating in Washington."
In a cross appeal, Deltek asserts that the trial court erred in denying its motion to strike Seward's declaration, which West offered in response to Deltek's notice of presentation. Because West does not prevail, we need not consider this issue.
Because West's claims against Deltek arise under the license agreement, we affirm the trial court's order dismissing its claims for improper venue and awarding attorney fees and costs to Deltek. Because Deltek prevails in this appeal, we also award costs and reasonable attorney fees to Deltek incurred on this appeal, limited to the amount necessary to compensate it for any additional costs of defending in Washington, upon its compliance with RAP 18.1.
LAU and APPELWICK, JJ., concurs.